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Decisions of the Superior Courts of New South Wales, 1788-1899

Hart v Rowley [1825] NSWSupC 52

felony attaint - pardon

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 31 October 1825

Source: Sydney Gazette, 3 November 1825


In this case, which was an application to shew why the verdict should not be set aside, on certain grounds, it appeared that the plaintiff, T.H. Hart, had some dealings with the defendant Rowley, in which he became indebted to him.  Subsequently to this, Hart was convicted of felony, and judgement of the Court passed on him, and after such conviction the action which was the subject before the Court was brought.  At the trial, an objection was taken that the plaintiff, being a convict attaint, could not recover, and a point was saved as to whether evidence of such conviction could be received under the plea of the general issue.  His Honor the Chief Justice stated, that he had consulted with Mr. Justice Stephen, whose opinion coincided with his own, that such evidence could not be received under a plea of the general issue.  It should have been pleaded specially, as in that case the Court would have been apprized, and the party himself would not have been taken by surprise, but might have produced a pardon, or come prepared with some evidence, to meet the defence set up; on this ground, he was of opinion the Rule should be discharged.  Rule discharged.[1 ]



[1 ] This was typical of the way in which the Supreme Court got around attaint restrictions after the Eagar cases of 1820: see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, chap. 2.  For other attaint cases in 1825, see Polack v. Josephson, August 1825; R. v. Dwyer, Kinnearm Madden and Blewit, March 1825; and see R. v. Cable, July 1826.  See also Campbell v. Hart, 2 August 1825 (Sydney Gazette, 4 August 1825) in which leave was granted to proceed in action at law against a prisoner of the crown convicted of felony.

Published by the Division of Law, Macquarie University